'Don't Ask, Don't Tell' Unconstitutional: An Analysis of the Ruling

Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His areas of expertise are criminal law, criminal procedure, LGBT law and law and economics. Ari will be writing biweekly posts on law and various LGBT issues.

The latest victory for gay rights comes to us from Riverside, California, the birthplace of Don Imus and navel oranges. Approximately 440 miles south of Castro Street in San Francisco, the county of Riverside went for President Obama in 2008 by just 15,000 votes but voted "Yes on 8" by a margin of almost 200,000 votes. It was here that the Log Cabin Republicans, the party's gay group, brought a constitutional challenge to "Don't Ask, Don't Tell." And, they won! Yesterday, District Judge Virginia Phillips declared the law unconstitutional under the First Amendment and the substantive due process clause of the Fifth Amendment.

"The don't ask don't tell act infringes the fundamental rights of United States service members in many ways," Judge Phillips wrote in her 86-page opinion. "In order to justify the encroachment on these rights, defendants faced the burden at trial of showing the don't ask, don't tell act was necessary to significantly further the government's important interests in military readiness and unit cohesion. Defendants failed to meet that burden."

Here's why.

Plaintiffs argued first that DADT violated their substantive due process rights, identified in Lawrence v. Texas, associated with free expression, belief and "intimate conduct". Judge Phillips stood on the shoulders of Lawrence and Witt v. Department of the Air Force, the latter of which found that DADT implicates the liberty interest identified in Lawrence and thus "is subject to heightened scrutiny." (p49). So, in order to justify DADT's discrimination, the government had to show (1) an important government interest (2) furthered by the policy by (3) an intrusion on liberty necessary to further that interest. In other words, the government had to have a pretty good reason for DADT and that DADT actually achieved its goal.

The government could not do that. The policy's justifications -- military readiness and unit cohesion -- may be important government interests (that was decided in Witt), but the policy did not advance those goals. The government relied exclusively on legislative history, i.e., comments made and studies done when DADT was first debated and signed into law. Plaintiffs provided witnesses and their own studies showing that, in fact, DADT has a deleterious effect on unit cohesion and military readiness. For example, the policy resulted in discharges of important personnel at a time of great need, it negatively affected military recruiting by discouraging those who would otherwise enlist, it resulted in the admission of lesser qualified enlistees and it made the military less of a meritocracy. Nor was the policy necessary to advance the policy's justifications. Here, Judge Phillips used President Obama's, Admiral Mike Mullen's and others' statements opposing DADT against the government, concluding that few in the government really believe this policy is a good idea. She also found testimony from current and former service members and military commanders who saw first hand how the discharge of needed personnel actually hindered military readiness.

Next, the plaintiffs argued that DADT violated their First Amendment rights. That's a new one, right? Not so much. It is an argument that has been kicking around for a while, but the Log Cabin Republican legal team deserves credit for bringing such solid evidence to trial. Plaintiffs argued that DADT was a so-called "content-based" restriction on speech, i.e., it restricted speech merely because of the subject of that speech. That is, while straight service members can talk freely about their heterosexuality, gay service members cannot discuss their homosexuality simply because discussion of homosexuality, as grounds for dismissal, is off limits if you want to keep your job. That is a content-based restriction and, therefore, under the First Amendment, DADT would normally have to meet strict scrutiny.

But, Judge Phillips did not use strict scrutiny because of the unique nature of speech rights in the military context. As with many other areas of law, the military gets special deference from the courts because military life requires values and behavior -- obedience, a clear chain of command and order -- not salient in civilian life. Therefore, the policy had to be "reasonably necessary to protect the substantial government interest" (p82).

DADT could not even meet that lower standard, however. DADT represents a broad restriction on speech. It not only prevents service members from saying, "I am gay," but it also chills discussion of one's social life, prevents gay service members from spending social time with their comrades and makes it impossible to respond to mundane "What did you do this weekend?" questions without violating the honor code. The sweeping nature of DADT's restriction on speech made it unreasonable and unnecessary.

That's it in a nut shell. Using two forms of heightened scrutiny, Judge Phillips found DADT unconstitutional under the Fifth Amendment and the First Amendment.

So, where do we stand now?

Some questions I know are on your mind and some answers on mine AFTER THE JUMP...

1. DOES THIS MEAN THAT DADT WILL NO LONGER BE ENFORCED?

No. Judge Phillips issued a "declaratory judgment" yesterday, but gave the plaintiffs until September 16th to submit language for a proposed injunction. Defendants have seven days from submission of the proposed injunction to object. So, assuming plaintiffs submit their proposed injunction on the 16th, the earliest the government could be enjoined from discharging service members is shortly after the 23rd. Judge Phillips could, at any point, stay the judgment and injunction pending appeal or, taking a page from Judge Walker, deny a stay pending appeal but issue a temporary stay to allow the government to seek a stay from the Ninth Circuit. That, of course, requires the government to decide to appeal this case. But, that is a political and strategic matter.

2. IS THE DECISION STAYED?

As noted above, there is no stay just yet but that is because there really is no injunction just yet. Judge Phillips made her legal conclusions, but like many cases involving injunctions, she is giving the parties time to submit their proposed injunctions and their objections. For now, there is nothing to stay. However, Judge Phillips does have the power to stay her decision at any time once she enters judgment.

3. HOW DID THE LOG CABIN REPUBLICANS HAVE STANDING TO BRING THIS CASE?

Some readers might be thinking this all sounds weird. Normally, to bring a case to court challenging a particular law, you have to be directly harmed by a law. That is why all previous challenges to DADT have been brought by individual service members who have been, or were about to be, discharged under the policy. The Log Cabin Republicans as a group could not have been directly harmed by DADT, so how could they bring this case? Are they not in the same position as the Prop 8 proponents who, as argued here, likely do not have standing to appeal Perry? Ari, are you contradicting yourself?

In order... (a) they can because their members are harmed, (b) no, standing to bring a facial constitutional challenge to a law is different than standing to appeal a district court decision, and (c) no, never!

(a). The Log Cabin Republicans can bring a suit on behalf of their members if at least one of the LCR's members would have standing in his or her own right, if the issue is germane to the group's mission and neither the claim nor the desired relief requires a particular individual to be a part of the suit. LCR met all three requirements. Two members of the group, including a John Doe, either were in the military or are in the military and have been members of the LCR since before the beginning of this action. The other two requirements were really not in dispute. As a political organization representing gay individuals interested in a strong national defense as well as equal rights, the issues implication by this case fit well within LCR's mission. And, since the organization was not asking for the court to reinstate someone into the military and merely asking for a prospective ruling on a facial challenge to the law, no particular person was necessary for the relief to be granted.

(b). Standing to appeal a district court decision is different. Note the different stage in litigation here -- bringing a suit -- and in Perry -- appealing a district court decision. In order to having standing to appeal, you need to be directly harmed by court's decision. The Prop 8 proponents, having not been asked by Judge Walker to do anything differently after Perry, doubtfully have the right to bring the appeal when the State of California has made it clear it does not want to appeal. Here, the LCR has standing to bring the suit.

(c). Never!

4. DOES THIS DECISION APPLY TO THE ENTIRE COUNTRY OR JUST CALIFORNIA?

Declaratory judgments and injunctions based on facial challenges to a law can have national effect when issued by a single district court. There is some uncertainty here, but after consulting an expert in the field, I am persuaded that Judge Phillips decision could be implemented nationally. Normally, when a federal district court has jurisdiction over a particular person, an order deciding his case applies to that person wherever he is in the country. In other words, if a court enjoins me from watching Family Guy and has jurisdiction over me, that ruling would apply to me no matter where I hook up my television. Also, this case is a facial challenge to a statute, which means that the LCR was challenging DADT as unconstitutional no matter its application, no matter to whom it applies and no matter where it applies. Plaintiffs argued that the law was unconstitutional "on its face" not "as applied" to a particular person living in California. Therefore, the ruling could have national reach.

But, the federal government has for decades taken the position that precedent against the government in a particular circuit only applies to that circuit, but that is the government's position and I am not aware of that argument being used against successful facial challenge.

I would like to thank Shannon Minter, of the National Center for Lesbian Rights, and Jon Davidson, of Lambda Legal Los Angeles, for their input.

5. IS THIS DECISION JUST LIKE JUDGE WALKER'S DECISION IN PERRY V SCHWARZENEGGER?

No. There are many differences and I will highlight a few here. But, together, these two cases represent significant victories for equality.

(a) Obviously, the subject matter is different, but both cases are based, at least in part, on Lawrence v. Texas. Here, Judge Phillips saw Lawrence's liberty interest in intimate association as implicated by a policy that does not allow individuals to be who they are in the military. In Perry, Judge Walker crafted his rational basis decision in the model of Lawrence with an eye toward Justice Anthony Kennedy's vote on the Supreme Court and used his rational basis model as the foundation for overturning Prop 8. For better or for worse -- and legal scholars will disagree about Lawrence as a good precedential tool -- Lawrence is becoming a powerful weapon.

(b) The level of scrutiny was different. In Perry, Judge Walker stated that he believed Prop 8 should be analyzed through strict scrutiny because it discriminated against gays and lesbians who, in turn, should be considered a suspect class and because the right to marry was a fundamental right. Strict scrutiny requires the government to justify a discriminatory law by showing a compelling interest and that the law is narrowly tailored to achieve that interest. Ultimately, Judge Walker found Prop 8 unconstitutional under the lower rational basis review. Here, Judge Phillips used a level of scrutiny of the due process claim that was somewhere in between. She required an "important" government interest and a policy "necessary" to achieve that goal. And, for the First Amendment claim, the level of scrutiny was even lower: "reasonably necessary to protect a substantial government interest." Why the difference?

For the First Amendment claim, greater deference to the military is playing a role. Civilian courts are not experts in the unique facets of military life and, therefore, military policies receive great deference. The values of obedience and order are not always salient values in the civilian world, but are essential for military success. But even under the lower reasonableness standard, DADT could not survive. In fact, the evidence offered at trial showed that the policy was hindering military readiness at every turn.

For the due process claim, Judge Phillips used a form of heightened scrutiny because the discrimination here involved the fundamental right implicated in Lawrence.

6. WAIT A MINUTE. Lawrence was decided under rational basis review. But here, Judge Phillips says that per Lawrence and Witt, DADT gets some version of heightened scrutiny. WHAT GIVES?

This is part of a great debate about what the frak happened in Lawrence. It is not at all clear what form of review Justice Kennedy used in Lawrence and, in his dissent, Justice Scalia made hay out of it, saying that if the liberty interest were really fundamental, the court would have used strict scrutiny. It did not. So, Scalia said, that Court must have used some heretofore unheard of form of rational basis review that is stronger than regular rational basis review but absolutely unclear as to what it actually is. Lower courts have also jumped on this confusion and have found different things in the case. Witt, for example, found a form of intermediate scrutiny in the Lawrence majority. Judge Phillips took Witt as instructive because of its binding nature in the Ninth Circuit and because it addressed the DADT policy. But where this leaves Lawrence is unclear. Lawrence did or did not involve fundamental rights? Scalia and the majority opinion appear to say no, but Witt said yes. If Witt is right, why was there no strict scrutiny in Lawrence and why create some intermediate form of scrutiny in Witt? Nan Hunter has argued that the Court in Lawrence was moving away from these limiting forms of scrutiny to, as Justice Souter has suggested, a flexible balancing test to make sure laws are not arbitrary. If that is the case, Witt and Judge Phillips take us back to the tiers of scrutiny and do so without any clear rationale. Suffice it to say, this discussion will continue.

Thanks for breaking it down and for posting. Another small step for equality.

Posted by: Bobby | Sep 10, 2010 12:49:49 PM

Yet again Mr. Waldman gives reason to believe he gets much of his information off of the back of a cereal box.

He claims that LCR's standing wasn't "in dispute," when, in fact, the Obama DOJ ruthlessly and repeatedly challenged it in every way possible, including claiming that party Servicemembers United cofounder Alex Nicholson wasn't a "real" member of LCR, and that party "John Doe" had no right to claim DADT harms him because he's still IN the military.

When the judge denied those motions, the ODOJ TWICE tried to bully her out of letting the case go forward, insisting that she should wait to see what Congress does.

Finally, Mr. Waldman inexcusably fails to note three extremely important other things:

1. When LCR offered to delay the lawsuit IF Obama, Inc., would stop discharges pending repeal, the ODOJ REFUSED!

2. Scrutiny/schmutiny! As formerly in civilian sodomy cases, and still in marriage equality cases, any PERMANENT success of legal challenges to the ban depend NOT on the brilliance of plaintiffs' arguments and lower court judges' rulings but on the willingness of the Supreme Court to set aside their tradition of trumping the Constitution with what they believe is "good for" the military/society.

"While is is clear that one does not surrender his or her constitutional rights upon entering the military, the Supreme Court has repeatedly held that constitutional rights must be viewed in light of the special circumstances and needs of the armed forces."

3. And THIS COMING MONDAY the Obama DOJ will be jumping down the rabbit hole yet again to defend DADT yet again in the 9th Circuit Court of Appeals-ordered "Witt" retrial [discharged Air Force Maj Margaret Witt] which starts at 9:30 a.m. in US District Court for the Western District of Washington in Seattle.

Recall that due to the May 2008 Ninth Circuit Court of Appeals ruling that the Obama Administration continues to ignore just like the Bush Reich did, the government must prove that discharging her "significantly furthers the government's interest" because SHE would somehow hurt the military [versus the assumption that all gays do by definition].

How many ways does our alleged Commander-in-Chief have to be reminded that he has chosen the wrong side of History before he stops being Robert Gates' pissboy?

Good for you, Michael. Yet another step forward brought to you by Republicans. Whether it's the Supreme Court justices appointed by Governor Bransted in Iowa, the brilliant Prop 8 decision by Judge Walker, appointed by Pres. G.H.W. Bush, and now Log Cabin's efforts to overturn DADT.

Meanwhile, the HRC crowd fiddles while Rome burns, and our "fierce advocate", President Obama's Justice Department fights DADT repeal tooth and nail. The Commander in Chief could have suspended discharges based on DADT while the policy was reviewed/changed/repealed, but he has chosen not to.

Keep writing those checks to Democrats. Keep getting taken for granted. Keep getting nothing on your investment in Democrats. Most of all, keep sneering at every Republican as if they are all evil and all Democrats are our friends.

The political acument of our community is pathetic.

Posted by: LincolnLounger | Sep 10, 2010 1:45:46 PM

Thanks, but I don't wish to be misunderstood. I'll never VOTE Repug, but I do now support only very selective donations to Dems.

As for the Hilary Rosen Champagne fund....they should have been put out of our misery years ago.

One of the great things about all of these decisions is that they are prefaced on the fact that gays are just like heterosexuals in every way (intelligence, ability to fight, etc.). On both sides it's not even a question - making it hard for the anti-gay side to really prove their point. All their left with is "it's icky and we don't like it."

Thanks so much Ari, I was a bit lost on the implications without you!

@LincolnLounger, stop ignoring the amount of hate and vitriol that Republicans bring to the table. While the Log Cabin Republicans are Republicans, they are first and foremost a gay rights group which is why they got this issue pushed through - not because of their political beliefs. Additionally, we've already heard disappointment in this decision from notable conservative gays.

And, at the end of the day while Democrats may not be doing much, we would never see them as a party proposing an amendment to restrict the rights of marriage and put into our constitution that we, as gays, are second class citizens. While there may be a few good republicans, there are too many who openly advocate for hate and less rights. If my choice was between an inactive Democrats who don't do anything on Gay issues or Republicans who actively try to hold down Gays then I know who I would choose if I was primarily voting on Gay rights issues.

Posted by: Joe | Sep 10, 2010 2:39:11 PM

Michael- While I admire your knowledge and passion for this issue and have said so before, why must you seem so scornful of Ari? He may not be as all knowing about this but I see no reason to be rude. When he says he thought that LCR's standing wasn't in dispute, I think what he mean was in reality world as opposed to the minds of the side trying to say that. We realize they fought it but they were wrong. In that, we all agree. It seems you are angry at Ari and I am not sure why. You can disagree but do you have to be disagreeable about it?

Posted by: Rann | Sep 10, 2010 2:46:16 PM

@Rann: Thanks for your concern. @Michael: Actually, I did not say standing was not in dispute. I said two of three prongs of the standing issue were not seriously in dispute, as Judge Phillips herself said on p3 of her decision when she stated that "[d]efendants directed their challenge primarily to the first requirement of associational standing." Judge Phillips spent about a page on 2 prongs and the defendants spent little time at trial on those prongs, as well. But both the judge and the defendants spent quite a bit of time arguing the third prong, whether there was a member of the group who could have brought the case himself. So, while I certainly am nowhere near all knowing (I'm not even near half knowing!), I stand by what I said as correct.

Posted by: Ari | Sep 10, 2010 2:53:59 PM

Good analysis. But on the last point, the level of scrutiny is not that difficult to identify, and it is not a new level. It is what has been called "rational basis with bite". It is the level of scrutiny given to discrimination against a number of groups, most notably the mentally handicapped in a 1970s case. It is approximately the same as the so-called "intermediate" level of scrutiny given to gender classifications, but it just goes under a different name. I would prefer that SCOTUS make clear that we get intermediate or strict scrutiny, but rational basis with bite has been working well enough so far.

Ari, great analysis of Judge Phillips' decision for us laypeople. Given the value of Lawrence, my worry now is if some homophobic legal organization will try to get the Roberts court to overturn Lawrence.

Posted by: Peter | Sep 10, 2010 3:22:30 PM

@Peter, I have to imagine that at the very least it would be a 5-4 decisions at the very least. You have Kennedy, Breyer, and Gingsberg who supported it the last time with Sotomayer and Kagan supporting it. I doubt any of them would overturn it. Also, that case was decided so recently that it's hard to see the court not respecting the precedent set.

Posted by: Joe | Sep 10, 2010 3:31:23 PM

Joe, I don't ignore it. Some of it is reprehensible. Those ballot initiatives also were supported by lots of conservative
Democrats, both elected officials and voters.

My point is that there are a lot of good Republicans on our side, and the gay community has to quit being so monolithic and a Hallelujah Chorus for the Democrat phonies like Obama. That he could call himself a "Fierce Advocate" makes me want to puke.

Posted by: LincolnLounger | Sep 10, 2010 3:45:19 PM

@TANK....Pot, meet Kettle!

Posted by: Jared | Sep 10, 2010 3:51:25 PM

I loved reading the decision. (BTW, does anyone know where I can find the separate Findings of Fact?)

It was another piece of highly logical, eloquently-stated, cogently analyzed piece of D'uh, purchased at great expense and effort.

The most scathing part seemed to be the judge taking dubious notice that the army won't proceed with the gay investigation of anyone on a combat tour, but waits instead until they return home - kinda making mincemeat right there of the government's argument that gays impede military preparedness and unit cohesion.

I have an idea: Why don't we round up every Republican in congress, every member of the tea party, every member of the Mormon cult, everyone in California who voted for Prop 8, everyone in Maine who voted for Prop 1, plus Mr. Fierce Advocate himself - line them up head to foot in a chain stretching from coast to coast and then tattoo one word on each of them until the entire text of both Judge Walker's and Judge Phillips' decisions are inked into the flesh of these damaged humans in a manifesto of justice that can be read from orbit?

Posted by: Zlick | Sep 10, 2010 4:03:57 PM

@jerad: nuh ah.

Posted by: TANK | Sep 10, 2010 4:12:48 PM

@ Mr. Waldman: Is one not required to meet ALL three "prongs," as you call them, in order to have standing? Whether you wrongly claimed one, two, or three requirements were not in dispute, is beside the point.

Further, while addressed during the trial and in her decision, the crucial part of standing is before anyone steps into the courtroom. In fact, we assume you understand that demonstrating to the judge BEFOREHAND that one has such standing is necessary to even be allowed to have a trial. And, as noted, the ODOJ repeatedly tried to KILL the suit that way over the last year and a half before the judge finally had enough of their tactics and set the July trial date. Similarly, the original defendents, the Bush Administration also tried to have the suit dismissed for lack of standing.

You might want to peruse some of those motions to dismiss, etc., going back six years at:

http://online.logcabin.org/motions.html

@ Rann: I appreciate your kind remarks, and your concern for fairness. Yes, I am angry because Mr. Waldman ignored my earlier attempts to be more diplomatic in correcting his errors about the Witt case a couple of days ago. One of the reasons gays are STILL being discharged 35 YEARS after the first constitutional challenge is the willful ignorance of so many in the gay community, as in if knowledge is power then lack of knowledge is powerlessness.

Ari's inexcusable errors above serve to paint over [however unintentionally] how RUTHLESS the ODOJ was in trying to kill this lawsuit. The result is for many in the community to continue to fail to grasp that Obama has become an obstructionist to ending discharges. Just this morning I had to correct the facts for yet another person on Facebook who believed that he was the golden leader who finally got a vote on "repeal" in the House in May...when, in fact, he had to be dragged kicking and screaming by our allies in Congress and then turned on them and forced them to tear up the REAL "repeal" bill that he'd promised to personally fight for.

In short, to not understand that the Obama Administration is our ENEMY re the ban is not to react appropriately.

I didn't posit Mr. Waldman as an expert...he and Towleroad did. If the Road's other experts were as superficially informed in their areas, I'd expect the music columnist to confuse Eartha Kitt with gardening supplies.

This was a poorly-reasoned decision that will be overturned faster than you can say 'Don't Ask. Don't Tell'. Keep in mind that the majority of jurists now serving in the federal court system are "conservative" which, as far as the current judicial and political climate goes, means this: "If it ain't written down; if it ain't there in black-and-white; then, it ain't there."

Even if this decision is appealed all the way up the federal court food-chain to the Supreme Court, it will still be struck down and struck down HARD.

This decision will last about as long as a raindrop in the Sahara Desert.

Posted by: jamal49 | Sep 11, 2010 10:34:36 AM

Thank you, Ari. Thank you, Michael. We are all much better informed through your discussion. If only straight people would get past "icky" and understand the issues...